United States v. Johnson

911 F.3d 1062

UNITED STATES of America, Plaintiff - Appellee,

v.Darius Rashad JOHNSON, Defendant - Appellant.

Nos. 17-6165

17-6195

United States Court of Appeals, Tenth Circuit.

FILED December 26, 2018

Kyle E. Wackenheim, Assistant Federal Public Defender, Oklahoma City, Oklahoma for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney, with him on the briefs), Oklahoma City, Oklahoma for Plaintiff-Appellee.

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

Federal sentences can be affected by a defendant’s classification as an armed career criminal or a career offender. Both classifications underlie these appeals, which grew out of the sentencing and resentencing of Mr. Darius Johnson for possessing cocaine with intent to distribute ( 21 U.S.C. § 841(a)(1) ) and being a felon in possession of a firearm ( 18 U.S.C. § 922(g) ).

For these offenses, the district court initially imposed concurrent prison terms of 192 months, relying in part on Mr. Johnson’s classification as an armed career criminal because of three prior convictions for violent felonies.¹ The district court later vacated this sentence, concluding that one of the three prior convictions had not involved a violent felony. Having vacated the sentence, the court resentenced Mr. Johnson to concurrent prison terms of 120 months and 128 months, relying in part on his classification as a career offender because of two prior convictions for crimes of violence.

The government appeals the vacatur of the initial sentence, and Mr. Johnson appeals the new sentence. We affirm in both appeals.

I. Mr. Johnson had three prior felony convictions, creating issues involving his status as an armed career criminal and a career offender.

Under the Armed Career Criminal Act, defendants are classified as armed career criminals after being convicted of three violent felonies. 18 U.S.C. § 924(e)(1). When an armed career criminal is convicted of unlawfully possessing a firearm (after a prior felony conviction), the Act creates a mandatory minimum sentence of fifteen years’ imprisonment. Id. ; see 18 U.S.C. § 922(g)(1).

Under the federal sentencing guidelines, defendants are classified as career offenders after two convictions for felonies constituting crimes of violence. USSG § 4B1.1(a). This classification triggers enhancement of the guideline range in future sentences. USSG § 4B1.1(b).

To determine whether Mr. Johnson was an armed career criminal and a career offender, we must consider his three prior felony convictions in Oklahoma:

1. use of a vehicle to facilitate the intentional discharge of a firearm

2. assault and battery with a dangerous weapon

3. assault and battery on a law enforcement officer

The three prior convictions present two issues:

1. Did the three prior convictions involve violent felonies, triggering classification as an armed career criminal?

2. Did two or more of the prior convictions involve crimes of violence, triggering classification as a career offender?

II. After sentencing Mr. Johnson as an armed career criminal, the district court ordered vacatur and resentencing based on a new Supreme Court opinion.

The first issue grew out of a new Supreme Court opinion invalidating part of the Armed Career Criminal Act.

Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2556–63, 192 L.Ed.2d 569 (2015). In light of this opinion, the district court concluded that assault and battery on a law enforcement officer could no longer constitute a violent felony, preventing application of the 15-year mandatory minimum. But the court found that Mr. Johnson had prior convictions in Oklahoma for two crimes of violence:

1. assault and battery with a dangerous weapon

2. use of a vehicle to facilitate the intentional discharge of a firearm

Given these convictions, the district court resentenced Mr. Johnson as a career offender under the sentencing guidelines.

In his appeal, Mr. Johnson challenges his classification as a career offender. He concedes one prior conviction for a crime of violence (assault and battery with a dangerous weapon). But he denies that the use of a vehicle to facilitate the intentional discharge of a firearm would constitute a second crime of violence.

In its own appeal, the government contends that Mr. Johnson had three convictions for violent felonies, triggering a mandatory minimum sentence of fifteen years’ imprisonment for possessing a firearm after a prior felony conviction. Mr. Johnson does not dispute the existence of two prior convictions for violent felonies, but the government contends that he had a third one: assault and battery on a law enforcement officer. Pointing to this conviction, the government argues that Mr. Johnson qualifies as an armed career criminal.

III. The government’s appeal: Battery on a law enforcement officer is not a violent felony, precluding application of the Armed Career Criminal Act’s 15-year mandatory minimum.

Mr. Johnson’s status as an armed career criminal turns on his past conviction for assault and battery on a law enforcement officer. This conviction had been based on Okla. Stat. tit. 21, § 649(B), which criminalizes

• "battery" or "assault and battery" on a law enforcement officer

• while the officer was performing his or her duties.

Okla. Stat. tit. 21, § 649(B). We compare the state’s definition of this crime to the Armed Career Criminal Act’s definition of a "violent felony." Under the Act, a prior crime could qualify as a violent felony under the Elements Clause, the Enumerated-Offense Clause, or the Residual Clause. 18 U.S.C. § 924(e)(2)(B). These clauses provide three alternative definitions of a violent felony:

1. Elements Clause: An element of the offense includes the use, attempted use, or threatened use of physical force against another person. 18 U.S.C. § 924(e)(2)(B)(i).

2. Enumerated-Offense Clause: The offense is burglary, arson, extortion, or a crime involving the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii).

3. Residual Clause: The crime otherwise creates "a serious potential risk of physical injury to another." Id.

The government concedes that in deciding on the initial sentence, the district court had invoked the Residual Clause, which was later invalidated as unconstitutionally vague. Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2556–63, 192 L.Ed.2d 569 (2015). Given the invalidity of the Residual Clause, the government concedes that the district court had erred in imposing the initial sentence. Despite this concession, the government argues that the error was harmless because § 649(B) qualifies as a violent felony under the Elements Clause.

A crime may qualify as a violent felony under either the modified categorical approach or the categorical approach. United States v. Titties , 852 F.3d 1257, 1265 (10th Cir. 2017). We conclude that the modified categorical approach does not apply here because the statute of conviction— § 649(B) —is indivisible. We thus conclude that

• a conviction under § 649(B) does not fall within the Armed Career Criminal Act’s Elements Clause and

• Mr. Johnson was not an armed career criminal subject to the 15-year mandatory minimum.

A. Standard of Review

The government bears the burden of demonstrating harmlessness of the constitutional error in the initial sentence. United States v. Lewis , 904 F.3d 867, 872 (10th Cir. 2018). To satisfy this burden, the government must show that Mr. Johnson would have qualified as an armed career criminal even without reliance on the Residual Clause. Id. at 873.

B. The Modified Categorical Approach and Divisibility

The government urges us to apply the modified categorical approach and treat the conviction under § 649(B) as a violent felony under the Elements Clause. Under the modified categorical approach, we consider a limited class of documents to determine whether a crime necessarily includes elements that would constitute a violent felony. Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). If these documents show that a violation of § 649(B) would necessarily qualify as a violent felony, the crime would constitute a violent felony under the modified categorical approach. United States v. Degeare , 884 F.3d 1241, 1245 (10th Cir. 2018).

But the modified categorical approach can be used only if the statute of conviction is divisible. Descamps v. United States , 570 U.S. 254, 263–64, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; see also p. 1072, below. And a statute is divisible only if it lists elements in the alternative, effectively defining separate crimes. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). Even when a statute contains alternatives, it is considered indivisible if the alternatives constitute means rather than elements. Id. " ‘Elements’ are the parts of a statute that the prosecution must prove; ‘means’ are alternative factual methods of committing a single element." United States v. Hamilton , 889 F.3d 688, 692 (10th Cir. 2018). A statute containing alternatives is divisible only if we are certain that the alternatives are elements rather than means. United States v. Degeare , 884 F.3d 1241, 1248 (10th Cir. 2018).

As the government points out, § 649(B) does contain two alternatives:

1. Battery on a law enforcement officer and

2. Assault and Battery on a law enforcement officer.

Do these alternatives constitute two separate crimes, with separate sets of elements? Or are they simply different means of committing a single crime?

To decide whether the alternatives constitute elements or means, we may consider three sources:

1. state-court opinions

2. the text of the statute

3. the record of conviction

Mathis , 136 S.Ct. at 2248–49. Each source may definitively show whether a statutory alternative constitutes elements or means. Id. at 2256. If none are definitive, however, the statute must be treated as indivisible. Hamilton , 889 F.3d at 692.

The government contends...